Charles Young v. Jack M. Garner, Senior Warden, et al.--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-95-045-CV

CHARLES YOUNG,

Appellant

v.

JACK M. GARNER, SENIOR WARDEN, ET AL.,

Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court # 28,729

O P I N I O N

Appellant Young appeals from an order of the trial court dismissing his pro se informa pauperis action pursuant to Tex. Civ. Prac. & Rem. Code 13.001.

Appellant, an inmate of the Texas Department of Criminal Justice, Institutional Division at Hughes Unit in Gatesville, brought this suit against Appellees, Garner, Moore, and Stice, who are officials of TDCJ-ID.

Appellant alleged that Appellees confiscated $25 sent to him by his family; retaliated against him for a suit he filed in Coryell County; were indifferent to his requests during disciplinary hearings conducted against him; illegally froze his trust account; and denied him proper access to the courts. He sued for compensatory and punitive damages.

The trial court dismissed Appellant's suit pursuant to Tex. Civ. Prac. & Rem. Code 13.001, stating that his claim was "frivolous and malicious"; had no arguable basis in law or in fact; and failed to state a cause of action.

Appellant appeals, contending the trial court erred and abused its discretion in dismissing his case as frivolous and malicious without an evidentiary hearing.

Tex. Prac. & Rem. Code 13.001 authorizes a trial court to dismiss a suit brought informa pauperis as frivolous and malicious if it finds that the action has no arguable basis in law or in fact.

The record presented by Appellant shows that he was assessed $24.90 in a disciplinary hearing for damaging his mirror, and that a hold was placed on his funds until the $24.90 was paid. The Appellees are all officers of TDCJ-ID. Government officers have an immunity from personal liability while performing discretionary duties within the scope of their employment so long as those duties are performed in good faith. Carpenter v. Barnes, 797 S.W.2d 99, 101 (Tex. App. Waco 1990); Campbell v. Jones, 204 S.W.2d 425, 427 (Tex. 1954).

Discretionary actions are those which require personal deliberation and judgment. Wyse v. Dept. of Public Safety, 733 S.W.2d 224 (Tex. App. Waco 1986, writ ref'd n.r.e.). Appellees here, in making decisions concerning the inmate under their care, were exercising discretionary powers. The record shows Appellant was assessed $24.90 as a result of his disciplinary case involving damage to his mirror, and that a hold was placed on his funds until the $24.90 was paid. The record does not show that the Appellees' actions were unlawful or unreasonable. Thus, Appellees are entitled to qualified immunity, and Appellant has no arguable basis in law or fact for his suit.

The trial court properly dismissed Appellant's case because the claim stated therein has no arguable basis in law or fact. Appellant's contentions are all overruled. The judgment is affirmed.

FRANK G. McDonald

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Cummings, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed November 1, 1995

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